What state secrets? National Intelligence Director cops to spying program

In a remarkable interview released yesterday by the El Paso Times, National …

In an in-depth interview with the El Paso Times yesterday, National Intelligence Director Mike McConnell offered new details about the government's surveillance activities and the administration's recent full-court press for expanded wiretapping powers.

McConnell described the hectic week of negotiations that led up to the passage of this month's FISA legislation, and he denied charges that he had negotiated in bad faith. Several versions of the legislation were circulated on Capitol Hill in the last week before the August recess, and McConnell said he didn't have time to review the Senate's latest draft until Friday evening. At that point, he found provisions he considered unacceptable and insisted that the Senate pass a different version that had first circulated two days earlier. The Senate passed McConnell's preferred version and adjourned, forcing the House to either pass the Senate's language or no language at all.

"Some Americans are going to die"

McConnell charged that as a result of press reports and Congressional debates regarding surveillance activities, "some Americans are going to die." That's because disclosures about surveillance activities will tip off terrorists to the existence of American surveillance programs and prompt them to use alternate communication methods, making it more difficult for the authorities to stop terrorist attacks before they occur.

McConnell didn't elaborate on which specific revelations undermined anti-terrorism efforts. It can hardly have been a surprise to Al Qaeda that the U.S. government was spying on them or that they were using American voice and data networks to do it. Still, fear of terrorism is a potent force in American politics, and so McConnell's charges, however dubious, may persuade some members of Congress to support the administration's position.

McConnell portrayed this month's FISA legislation as merely preserving the government's historic power to conduct overseas surveillance without court oversight. But as we've written before, the legislation allows much broader surveillance. It requires only that surveillance be "directed at" a person outside of the United States, an amorphous requirement that could easily be interpreted to include tapping the domestic telephones of a foreign suspect's friends, relatives, business partners, and other associates.

Moreover, because the names of specific people being targeted will never be reviewed by a judge, there's no way to guarantee that the government will heed even that minimal standard. And because telecom providers are shielded from liability for their participation in any surveillance program put together under the program, they have little incentive to challenge overly broad spying. The American people are simply being asked to take the administration at its word that it is not abusing its powers.

McConnell declined to give details about what he considered unacceptable in the Senate's earlier drafts. And the El Paso Times did not press McConnell on whether he would have been satisfied with narrower legislation that simply clarified that FISA did not apply to communications between two foreign individuals.

Impact on EFF lawsuit

McConnell also acknowledged "under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued." Although he didn't mention AT&T by name, McConnell's statement appears to be a tacit admission of the accusations in the Electronic Frontier Foundation's lawsuit against AT&T.

That's a surprising admission because in April, McConnell filed a sworn statement that "The disclosure of any information that would tend to confirm or deny... an alleged classified intelligence relationship between the NSA and MCI/Verizon would cause exceptionally grave harm to the national security."

EFF lost no time in pointing out the inconsistency. "On the government's theory, the truth that is as plain as the nose on your face remains secret until the private sectors' assistance has been officially acknowledged by the Administration," writes Derek Slater on the EFF blog. "The evidence already on the record is sufficient to move forward with the case, but McConnell's statement should absolutely settle the question."

McConnell must have realized that his statements would weaken the government's state-secret arguments, suggesting that the White House may have decided to shift its legal strategy in the telecom liability cases. The administration may be worried about an embarrassing legal setback if the Ninth Circuit rejects its state secrets argument. McConnell may have concluded that going public about the program would help him obtain legislation from Congress granting telecom companies retroactive blanket immunity for their participation in the wiretapping program. Expect the White House to push hard for immunity legislation when Congress reconvenes in September.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.